G A RY H A I G H

CAPACITY AND CONSENT

CONSENT

•Establishing consent is fundamental to respect for patients rights.• It is a legal obligation.

WHAT IS CONSENT

•Consent is matter of whether a person has mental capacity to foresee the likely consequences of a decision.

ESTABLISHING CONSENT

•Need to inform the patient in a way that is clear easy to understand. Taking to account any communication difficulties.• Take all steps to reasonably facilitate a decision.•Consent is time and decision specific.

FLUCTUATIONS

•Be aware that the ability to consent may fluctuate. •Do not make presumption simply based upon a disability.

THE LEGAL TEST

The two-stage test of capacity:

1. Is there an impairment of, or disturbance in the functioning of the person’s mind or brain?

2. If so, is the impairment or disturbance

sufficient to cause the person to be unable to make that particular decision at the relevant time?

THE FUNCTIONAL TEST

Can the person• Understand?

• Retain?

• Use or weigh up?

• Communicate?

UNDERSTANDING THE INFORMATION

• reasonably understand options and why they are being proposed.

•What are the implications taking or not taking prescribed medication

RETAINING INFORMATION RELATED TO THE

DECISION

• The information needs to be retained long enough for the person to both understand the question and consider and weigh up the options.

• A good way of testing this is asking the person to paraphrase the decision and what the options are. Retain

Can you remember what the choices are?

WEIGHING up?

•Demonstrates an awareness of the risks, benefits and implications of each choice.

•Enters into meaningful discussion about the choice?

reasonably foresee the likely consequences of the decision.

WEIGHING UP

pros

Positives

benefits

Option 1 Option 2

cons

Negatives

risks

pros

Positives

benefits

Cons

Negatives

Being able to reason and consider the likely consequences.

risks

COMMUNICATE

Inform you of their choice by what ever means they can.

Advance decisions

any person with capacity to so can make an advanced decision.

For example they cam make an advanced decision to refuse medical

treatment.

EMERGENCIES

•You will be legally protected if you have made a balance probability decision on capacity

•You can act without formally assessing capacity

WHEN A PERSON LACKS CAPACITY

• If a person lacks capacity to make a decision, then a best interests decision is made on their behalf.

•This is made by a decision maker (relevant professional)

DETERMINING BEST INTERESTS

•Even if a person lacks capacity it is still important to take their wishes and feeling into account•Consult with other professional and family• IMCA (if no family) serious medical treatment

DETERMINING BEST INTERESTS

•Having established wishes and feelings take into account the advantages disadvantages of the options.

•Referred to as a balance sheet

BALANCE SHEET

pros

Positives

benefits

Option 1 Option 2

cons

Negatives

risks

pros

Positives

benefits

Cons

Negatives

weighing the risks and benefits to make balance of probability decision

risks

COVERT MEDICATION

•Can the person consent?

• If no it is in the persons best interests?

Any questions